Commonwealth v. Murphy

797 N.E.2d 394, 59 Mass. App. Ct. 571, 2003 Mass. App. LEXIS 1096
Massachusetts Appeals Court·Decided October 15, 2003·No. No. 01-P-592·Published·Cited by 7 cases

Opinion

Celinas, J.

The defendant, John D. Murphy, was indicted in Middlesex Superior Court on fourteen counts of larceny over $250 (G. L. c. 266, § 30), and one count each of fraudulent use of a credit card to obtain money or goods (G. L. c. 266, § 37C); forgery of a record-return or writing (G. L. c. 267, § 1); uttering (G. L. c. 267, § 5); and falsifying or stealing a driver’s license (G. L. c. 90, § 24B). Two counts of larceny over $250 subsequently were dismissed by the Commonwealth. After trial, a jury returned verdicts of guilty on the remaining sixteen counts. Murphy appeals from the convictions,1 claiming (1) error in the trial court’s refusal to strike the conclusions of a handwriting expert, and to limit the use by the expert of certain standards of comparison; (2) that the trial judge committed reversible error in arbitrarily finding that a bank signature card was a legal document within the meaning of G. L. c. 267, § 1; (3) that there was insufficient evidence to support convictions of larceny over $250, forgery, and uttering; (4) that the trial court committed reversible error in failing to declare a mistrial after discovering that a juror was a close friend of, and had engaged in discussion with, an attorney, not the trial attorney, who represented Murphy in a different pending criminal matter; and (5) that certain indictments should have been dismissed, as the Commonwealth had presented misleading and insufficient evidence to the grand jury. We affirm.

We summarize the facts, adding detail as necessary to a discussion of the issues. Between January 31, 1997, and July 3, 1998, the identities of six different people were stolen.2 Through use of these identities, televisions, video cassette recorders, [573] furniture, and computers, to the value of at least $17,000, were obtained from different vendors, including several stores operated by Sears and Circuit City. In addition, the stolen identities were used to open bank accounts and accounts at Mailboxes, Etc. It is undisputed that the six people whose identities were used, all named either John Murphy or Michael Sullivan, did not purchase the goods or open the accounts in question.

As a result of investigation, the defendant was arrested. In the course of the arrest, the police recovered, from a vehicle he had rented and in which he was seated at the time of arrest, various credit cards, receipts, checks, invoices, bank receipts, other commercial documents, and three birth certificates. We review each of the defendant’s claimed errors in turn.

Handwriting analysis. At trial, the Commonwealth called Nancy McCann as a witness. After hearing testimony concerning her credentials, the judge allowed her to testify as a handwriting expert. The defendant timely moved to strike a number of exhibits she had used as standards of comparison for the defendant’s signature.3 These included seven letters sent to the clerk of the Middlesex Superior Court, all relating to the case pending against the defendant and signed “John Murphy,” and eight documents bearing the signature “Michael Sullivan,” found in the car the defendant had rented and was operating at the time of his arrest. The defendant claims that, without testimony by persons who saw him sign each exemplar used as a standard of comparison, the documents should not have been admitted, or, in the alternative, the trial judge should have given a limiting instruction. Murphy contends that failure either to strike or give the instruction impermissibly shifted the burden of proof.

To have them admitted, the Commonwealth was required to show by a preponderance of the evidence that the defendant signed the exemplars. See Commonwealth v. Polian, 288 Mass. 494, 499 (1934). It was for the trial judge to determine whether [574] the Commonwealth satisfied its burden. There was here ample evidence to support the trial judge’s preliminary finding to that effect. As to the letters, they were addressed to the court clerk. They requested information about the defendant’s case, included the case docket number, and bore the signature “John Murphy.” As to the “Michael Sullivan” signatures, they were affixed to documents found in the rented car being driven by the defendant at the time of his arrest. In addition, two of those documents bore the defendant’s picture next to the “Michael Sullivan” signature, and there was evidence from a bank employee that the defendant had produced a license showing that he was “Michael Sullivan” when he signed another of the documents.

It is not obvious to us, and the defendant proposes no intelligible basis to believe, that the judge’s well-supported preliminary evidentiary determination somehow shifted an impermissible burden onto the defendant or otherwise prejudiced him in any way. The judge’s preliminary findings were not communicated to the jury. Neither did admitting the exemplars create any presumption or compel any conclusion. Instead, the judge left it to the jury to draw their own fair inferences. There was no error.

The defendant next argues that the judge erred in failing to strike McCann’s testimony as to certain conclusions she reached with respect to the authorship of the questioned signatures.4 No objection or motion to strike was taken at the time McCann initially testified; the defendant did not move to strike the testimony until the following day, after lengthy cross-examination. The objections and motions to strike were not timely. See Commonwealth v. Silvia, 343 Mass. 130, 135-136, (1961) (objections “must be taken to evidence when it is offered”); Commonwealth v. Wood, 17 Mass. App. Ct. 304, 307 (1983); Commonwealth v. Pagano, 47 Mass. App. Ct. 55, 59 (1999), cert. denied, 528 U.S. 1084 (2000). We review only to determine whether an error occurred that created a substantial [575] risk of a miscarriage of justice. See Commonwealth v. Epsom, 399 Mass. 254, 259-260 (1987).

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Commonwealth v. Murphy, 797 N.E.2d 394, 59 Mass. App. Ct. 571, 2003 Mass. App. LEXIS 1096 (Mass. Ct. App. 2003).

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